Hunnewell v. Hobart , 42 Me. 565 ( 1856 )

Rice, J.

Trespass quare clausum.

The Judge presiding instructed the jury, that the defendants having no authority in writing from the overseers of the poor of Madison, as required by the statute, were not justified, as town officers, in removing the plaintiff, his family and effects, and that they were liable as trespassers for so doing; but that the gist of this action was the breaking and entering the plaintiff’s close. That if the defendants entered the plaintiff’s house without his permission they would be liable, and their verdict should be for the plaintiff. Rut if the plaintiff gave the defendants permission to enter his house, and they entered by his consent, then the defendants would not be liable in this action.

In the six Carpenters’ case, 8 Coke, 146, it was resolved, that when entry is made by authority or license given to any one by law, and he doth abuse it, he shall be a trespasser ab initio; but when or where the entry is by authority or license given by the party, and he abuses it, then he must be punished for his abuse, but shall not be a trespasser ab initio.

This distinction will be found running through all the old authorities to the present day. The instructions were in strict conformity with law.

The requested instructions were rightfully denied. They were both purely hypothetical. The question at issue was not whether the defendants became trespassers by acts committed after they had entered by permission, but whether by such illegal acts they became trespassers quare clausum.

Exceptions overruled. — Judgment on the verdict.

Tenney, C. J., and Hathaway, Appleton, Goodenow and Cutting, J. J., concurred.